purposes of taxation. A classification made | section which provides that the property of to secure the direct production of a state corporations which are subject to this special revenue is presumed to be advantageous to the state, and the same reason which is held to require a strict construction in one case would suggest a liberal construction in the other.

tax shall not be set in the grand list nor stated in the inventories returned to the listers. But the agreed statement shows that, although this property was not returned in the defendant's inventory, its valuation was determined, not by doubling its real value. but by reference to the quadrennial appraisal. Counsel argue this matter without raising any question as to the construction of the agreed statement, and we treat the point regarding the method of determining the valuation as before us.

[3] The lease to the railroad company authorizes the use of the power for other than railroad purposes, and it is claimed that the defense fails because it does not appear but that the company intends to put it to other uses in the future. This claim apparently results from the plaintiff's theory that the property subjected to the special tax is only [5, 6] The statute directs how the list shall such as might have been taken under the be made when an inventory is properly filled right of eminent domain. But the law of out and returned. P. S. 547, 555. It proeminent domain is not the criterion in mat- vides for doubling an ascertained value when ters of taxation. Stiles v. Newport, 76 Vt. a person willfully omits to make, swear to, 154, 56 Atl. 662. It was within the power and deliver an inventory, or to answer any of the Legislature to withdraw this property interrogatory therein. P. S. 561. It does not from general taxation, whether acquired by specifically direct what shall be done when condemnation or purchase, and even if in- no inventory is returned, or an interrogatory capable of acquirement by condemnation. It is left unanswered, and the listers are satishas in terms withdrawn "all property ac-fied that the failure to return or to answer quired, constructed or used for railroad business or purposes." It is not necessary for the defendants to negative an intention of the railroad company to use the property at some future time for the other purposes mentioned in its lease. It was in fact used exclusively in the operation and business of the road at the time of the appraisal by the state officials, and this is sufficient. See Deerfield River Co. v. Wilmington, etc., Co., 83 Vt. 548, 77 Atl. 862. As to the objection that the entire property is withdrawn from general taxation, when for aught that appears but a trifling part of it may be in use, it is enough to say that the Legislature has not made the complete utilization of the property for railroad purposes the test of the classification.

[4] The railroad served by this power is partly within the state and partly without; and in view of this fact the plaintiff seeks to bring the case within the rule, given in Swanton Village v. Highgate, 81 Vt. 152, 69 Atl. 667, 16 L. R. A. (N. S.) 867, that when property is put to a mixed use, part of which affords a basis of taxation and part not, and there is no way of separating the parts, the whole is taxable. But the cases are dissimilar in every feature, only one

of which need be noticed. The statute imposing this special tax expressly provides a method for determining the value of the property upon the basis of its use in this state. The statement presenting the case says it is agreed that all the proceedings in making up the grand list were regular, except that the defendants and the railway company claim that the action of the town officials in appraising and setting this property in the list was in violation of P. S. 797. This is the

was not willful. But inasmuch as the statute gives no right to double unless the failure to return or to answer is willful, it is clear that cases where the failure is not willful are to be treated as within the first class; for, unless this is done, there will be no taxation of the property, and an intention to reach this result is certainly not to be presumed. In the absence of any finding on the subject, it is to be presumed that the listers were mindful of their duty, and did not adopt the quadrennial valuation without finding that the failure to include this property in the proper answer was not willful. Judgment affirmed.

STOKES v. MASON.

(85 Vt. 164)

BREACH OF MARRIAGE PROMISE (§ 28*)-DAM-
AGES-AGGRAVATION.

A woman, suing for breach of promise of marriage, may recover damages for her seduction by means of the promise.

[Ed. Note. For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 40-43; Dec. Dig. § 28.*]

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by Minnie M. Stokes against Chandler L. Mason for breach of promise to marry. Demurrer to amended declaration overruled, and declaration adjudged sufficient, and defendant brings exceptions. Affirmed, and cause remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

N. J.)

BOARD OF EDUCATION v. STATE BOARD OF EDUCATION

Hogan & Hogan, Emmet McFeeters, and M. H. Alexander, for plaintiff. C. G. Austin & Sons, for defendant.

163

probably cannot be said in strictness that the relative situation of the parties in this respect is changed by the woman's reliance on a promise of marriage; for she is nevertheless a responsible and consenting party to an immoral act. But, as bearing upon the right to a complete remedy for the broken promise, it may properly be said that the quality of her assent is modified by the promise. As a suitor seeking redress for a breach of promise of marriage, she is not a party to the wrong complained of, nor in any way disentitled to full compensatory damages from her promisor. He has obtained marital privileges on the faith of a promise which, if unfulfilled, operates as a fraud; and the fact that the law does not permit a remedy for the seduction is no reason why the law should deny her full compensation for the breach of promise, on his plea that she was equally responsible for the sexual intercourse. The question may not be entirely free from technical difficulties, but there is an element of justice in this solution of it that cannot be gainsaid.

MUNSON, J. This case presents the single question whether a woman who has been seduced by means of a promise of marriage can recover, in a suit for breach of the promise, damages for the seduction by way of aggravation. The question is new in this state, but has been passed upon frequently in other jurisdictions. It is generally held that such a recovery may be had. Three or four states hold the contrary. Anderson v. Kirby, 125 Ga. 62, 54 S. E. 197, 114 Am. St. Rep. 185, 5 Am. & Eng. Ann. Cas. 103, and note; Wrynn v. Downey, 27 R. I. 454, 63 Atl. 401, 4 L. R. A. (N. S.) 615, 114 Am. St. Rep. 63. The arguments turn largely upon the ancient and settled rule of the common law that a woman cannot recover damages for her seduction, because she is a consenting party to the wrongful act. It is said, on the one hand, that to permit her to show the seduction in aggravation of the damages sustained from the breach of the promise is to permit her to recover indirectly what the law has emphatically and consistently forbidden her to recover. It is said, on the other hand, that she cannot recover the full damage resulting from the breach of the promise unless permitted to show all the circumstances contributing to the distress of (Supreme Court of New Jersey. June 6, 1911.) mind which is an acknowledged element of her damage. We do not deem it necessary to rehearse in detail the arguments which have been advanced on this question. They will be found fully presented in the Rhode Island case cited above. In that case nothing appeared, except that there was a promise of marriage and that subsequently there

was sexual intercourse. The declaration in this case alleges that the intercourse was induced by the promise.

It seems clear that the plaintiff in a suit for a breach of promise of marriage, who has been seduced by means of the promise, does not recover the full damage caused by the breach unless permitted to show the fact of seduction. Does the rule which prevents her from maintaining a suit for the seduction prevent her from recovering this element of damage when suing for the breach of promise? It is true that the nature of the damage would be the same in both cases, and that if a recovery of it is allowed in an action for breach of promise the law will be permitting in one case what it denies in the other. But the relations of

Judgment affirmed, and cause remanded.

(81 N. J. L. 211) BOARD OF EDUCATION OF BOROUGH OF FLEMINGTON v. STATE BOARD OF EDUCATION et al.

(Syllabus by the Court.)

1. CERTIORARI (§ 4*)-RIGHT TO REVIEW-EXISTENCE OF OTHER REMEDY.

The court will not review by certiorari the action of a local board of education under the school law until redress has first been sought in the special tribunals provided by the act. Cent. Dig. § 4; Dec. Dig. § 4.*] [Ed. Note. For other cases, see Certiorari,

2. SCHOOLS AND SCHOOL DISTRICTS (§ 41*)CONTRACTS ORGANIZATION OF NEW DIS

TRICT.

The board of education of a township employed a teacher to teach in a certain named school "under the control of said board of education," and he accepted the employment, and agreed to perform his duty thereunder, and to observe and enforce the rules prescribed for the government of the school by the board of educain which the school was situated became by law tion. Subsequently the portion of the township a separate school district. Held, that the new school district was not bound by the contract. School Districts, Cent. Dig. §§ 71-80; Dec. Dig. [Ed. Note.-For other cases, see Schools and § 41.*]

3. MUNICIPAL CORPORATIONS ($ 36*)-DIVI

SION-ADJUSTMENT OF PRE-EXISTING LIA

BILITIES.

ritory of an existing municipal corporation, it may impose on the former the obligation of existing contracts of the latter; but in the absence of legislation to that effect, the old corporation remains liable for pre-existing obligations.

Where the Legislature creates a new muthe parties and the inducement to the inter-nicipal corporation, embracing part of the tercourse are not entirely the same when there is a promise of marriage as in other cases; and the difference may have a bearing on the right of recovery. The ground on which the law denies a recovery for the seduction is that the parties are equally in fault. It For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Corporations, Cent. Dig. §§ 105-111; Dec. Dig. [Ed. Note.-For other cases, see Municipal § 36.*]

4. SCHOOLS AND SCHOOL DISTRICTS (§ 41*)— a majority of the legal voters of the territory ORGANIZATION OF NEW DISTRICT-EXISTING to be included within the borough. The act CONTRACTS.

5. ASSIGNMENTS (§ 19*)-CONTRACT ASSIGN-ington submitted to the state superintendent

N. J.)

BOARD OF EDUCATION v. STATE BOARD OF EDUCATION

165

der rules prescribed by the board of educa-ever, to a case like the present, where only tion, which must have meant the Raritan a portion of the old corporation is taken board of education, since the Flemington away from the new, and the old corporation board of education was not then in existence. remains as a substantial legal entity. Such The contract was, as it ought to have been, was the case of McCully v. Board of Educaa contract where the personal element was tion, 63 N. J. Law, 18, 42 Atl. 776, in which considered, and Glazer could not be held un- the liability of the old board' of education still der such a contract to obey the orders of an- remained and was enforced by suit and judgother corporation. The words "under the ment at law. In that case the court sugcontrol of said board of education" may have gested that it might be possible that under either one of two meanings attributed to affirmative words in the statute imposing an them. They may mean, as seems more nat- obligation upon the new board the creditor ural, that Glazer was to be under the con- might maintain an action against it, but that, trol of the said board of education-that is, in the absence of negative words showing the Raritan board-and this would har- clearly a purpose to take away his right and monize the contract of the board for the per- remedy against the old board, that remedy sonal services of Glazer with Glazer's con- remains. [4] The present case differs from tract to obey its orders. It may, however, be the McCully Case, in that there are no afthat the words, "under the control of said firmative words in the statute imposing an board of education," should be construed as obligation upon the new district on a condescriptive of the school, and in that view tract with a teacher. The only section of the contract would be one to teach in the the school law that is in any way applicable Flemington public school while it answered is section 34. It enacts that in any new that description. Whichever view is taken, school district the board of education in its the result is that Glazer's contract ended corporate capacity shall become vested with when the condition upon which it depended the title to all school property, real and perceased. In view of the fact that at the time sonal, in such district, and if, for the erecthis contract was made Glazer came within tion, repair, or purchase of any such properthe description of persons protected by the ty, there shall be an indebtedness for which so-called tenure of office act (P. L. 1909, p. the board of education of the school district 398), and became entitled under the provi- to which said property originally belonged sion of the pension act of 1907 (P. L. 1907, p. shall be liable, the said indebtedness shall 286) to apply for a pension after a few years be assumed by and become the obligation of further service, it was a wise precaution on the board of education of the school district the part of the board of education of Rari- which shall have become vested with the titan to limit his contract, especially in view tle to such property. The Legislature was of the obligation it imposed upon the Rari- here undertaking to define the obligation of tan board on the eve of the dismemberment the new school district, and limited it to inof that school district. debtedness for the erection, repair, or purchase of property, the title to which became vested in the new school district. Counsel for the defendant argued that the contract with Glazer was personal property, which passed to the Flemington board of education.

[3] This consideration is in our judgment enough to dispose of the case. Counsel have, however, argued the matter upon broader grounds, and the case is of sufficient public importance to justify an expression of opinion in the more general aspect. The proposition of the defendants is that a contract made between one public corporation and an individual binds another public corporation subsequently created, embracing a part of the same territory. The right of the Legislature to impose such an obligation cannot be questioned. Rader v. Southeasterly Road District, 36 N. J. Law, 273; Bloomfield v. Glen Ridge, 54 N. J. Eq. 276, 33 Atl. 925; Id., 55 N. J. Eq. 505, 37 Atl. 63; McCully V. Board of Education, 63 N. J. Law, 18, 42 Atl. 776. These cases are authority for the other proposition that, in the absence of legislation to the contrary, the old corporation remains liable for pre-existing obligations. In cases like Scaine v. Belleville, 39 N. J. Law, 526, and Sproul v. Smith, 40 N. J. Law, 314, the obligation of the new corporation was a necessary inference from the fact that the Legislature destroyed the old corporation, but was without power to impair the obligation of its outstanding contracts. The reason of the cases last cited is not applicable, how

[5] It is not consistent with the general principles of our law to hold that a contract for personal services is assignable so that the assignee may command the labor of one who has never agreed to serve him. The assignability of another man's labor was permitted in some parts of the country prior to the adoption of the thirteenth amendment to the federal Constitution. This former right conflicts with the views of this subject that have prevailed for nearly 50 years, and with the decision of our Court of Errors and Appeals in the recent case of Schlessinger v. Forest Products Co., 78 N. J. Law, 637, 76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 Am. St. Rep. 627. If this legal difficulty, however, in the defendant's argument could be overcome, the other language of the section makes it certain that the school property, real and personal, in such district cannot possibly refer to contracts with teachers. would require some strain of language to hold that such contract had a local situs in the district, but it is quite impossible to hold

It

that such contracts create indebtedness for [ For these reasons, the judgment of the erection, repair, or purchase. Those words state board of education is set aside, with can refer only to tangible property-real estate or chattels,

[6] It is argued that, unless Flemington is to be held upon this contract, the act of 1910, creating the borough impaired the obligation of the contract with Glazer. This view seems to have troubled the state su

costs.

(108 Me. 377)

FLAHERTY v. LIBBY. (Supreme Judicial Court of Maine. Oct. 5, 1911.)

CONTRCTS (§ 117*)-RESTRAINT OF TRADE

VALIDITY.

An agreement by a seller of a business not to re-engage in a similar business in the same city for five years, if made on a sufficient consideration, is enforceable.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 554-569; Dec. Dig. § 117.*] 2. INJUNCTION (§ 61*)-CONTRACTS IN RESTRAINT OF TRADE.

The seller of a trucking business, under an incidental agreement not to re-engage in any similar business in the city or vicinity for five years, will be enjoined from violating the agreement directly, or as agent or employé of a competitor.

[Ed. Note.-For other cases, see Injunction, Cent. Dig..§§ 120-123; Dec. Dig. § 61.*] Report from Supreme Judicial Court, Cumberland County.

Bill by Patrick J. Flaherty against Charles E. Libby. On report. Decree for plaintiff.

Bill in equity brought by the plaintiff, praying that the defendant be enjoined from trucking business in the city of Portland for engaging, either directly or indirectly, in the sold his trucking business in said city to the five years. The defendant had previously sold his trucking business in said city to the plaintiff, and had agreed in writing that he would not engage in "any similar business in Portland, or vicinity," for the term of five years from the date of the agreement. agreed statement of facts was filed, and the cause reported to the law court for determination.

perintendent, and he escaped the difficulty 1.
by holding that the borough was created by
the people themselves, and not by the Legis-
lature. This answer is hardly satisfactory.
The real answer is that the effect of the
creation of the borough was to leave the con-
tract between Glazer and the Raritan board
in full force and unimpaired. The obliga-
tion of neither party was affected. Raritan
had the same right as before to Glazer's
services, and Glazer had the same right as
before to claim compensation from Raritan.
It may have been this liability that induced
the Raritan board to limit the contract as we
have already said. It is true that Glazer has
lost such security for the performance of his
contract as might be found in the liability of
the inhabitants of Flemingtou to contribute
It does not necessarily follow
that a claim against Raritan would be less
easily collectible than before. It might well
happen that the proportion of the debts of
the old corporation that would fall upon
Flemington under the provisions of section
34 would be large in proportion to the ratea-
bles, a result that would be very probable
where a new and expensive schoolhouse had
recently been built within the territory of
the new board out of the proceeds of bonds,
for which, under section 34, the new board
would be liable. [7] There is another an-
[7] There is another an-
swer to this constitutional objection. The
Supreme Court of the United States is the
final authority, and it is there settled that
the Legislature of the state possesses the
power to divide counties and towns at its
pleasure, and to apportion the common prop-
erty and the common burdens in such man-
ner as to it may seem reasonable and equita-
ble. Laramie County v. Albany County, 92
U. S. 307, 23 L. Ed. 552. This rule has quite
recently been applied to legislation chang-
ing the boundaries of school districts (Kies
v. Lowrey, 199 U. S. 233, 26 Sup. Ct. 27,
50 L. Ed. 167), and is approved with abun-
dant citation of authorities in the still more
recent case of Hunter v. Pittsburg, 207 U.
S. 161, 28 Sup. Ct. 40, 52 L. Ed. 151. Mr.
Mr.
Justice Moody collected the authorities, and
they appear on page 178 of 207 U. S., on
page 46 of 28 Sup. Ct., 52 L. Ed. 151. It
has the approval also of our Court of Er-
rors and Appeals. Bloomfield v. Glen Ridge,
54 N. J. Eq. 276, 33 Atl. 925; Id., 55 N. J.
Eq. 505, 37 Atl. 63. The severance of the
school district did not impair the obligation
of Glazer's contract.

SAVAGE, SPEAR, CORNISH, BIRD, and
Argued before WHITEHOUSE, C. J., and

HALEY, JJ.

Connellan & Connellan, for plaintiff. Percy M. Andrews, for defendant.

HALEY, J. This is a bill in equity, reported to this court upon an agreed statement of facts.

On the 1st day of August, 1910, and for several years prior thereto, the defendant, Charles E. Libby, was the owner of a trucking business in the city of Portland, and on that day sold, transferred, and delivered to the plaintiff said business; the bill of sale being in the ordinary form, with a full description of the property sold, and containing the following agreement:

"I also, in consideration of above, and other considerations named in the mortgage which is a part of this transaction, agree not to engage in any similar business in Portland, or vicinity, for the term of five years from the day of the date hereof."